R v Ly

[2010] NSWDC 229

CITATION:	R v LY [2010] NSWDC 229
HEARING DATE(S):	7 October 2010
EX TEMPORE JUDGMENT DATE:	7 October 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Taking into account the Form 1 matter: the offender is sentenced to imprisonment. I set a non-parole period of two years and two months and an overall sentence of four years and four months.
CATCHWORDS:	CRIMINAL LAW - Sentence - Cultivation of large commercial quantity of cannabis by enhanced indoor means - Form 1 - Knowingly take part in the supply of cannabis leaf - Parity - Standard non-parole period
PARTIES:	The Crown Hung Phuc Ly
FILE NUMBER(S):	DC 2009/00152099
COUNSEL:	Mr G Gillette - Offender
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

SENTENCE

1 HIS HONOUR: Hung Phuc Ly appears for sentence today having pleaded at an early opportunity to one offence of cultivating a large commercial quantity of cannabis by enhanced indoor means. When I sentenced him for that matter he asks that I take into account on a Form 1 an offence of knowingly taking part in the supply of cannabis leaf relating to twenty-eight kilograms of cannabis leaf. These offences came to light after police became aware of the activities of this offender and a number of others relating to premises in Wolseley Street, Bexley. Telephone intercepts and surveillance were undertaken. They revealed that others involved were Cai Xiong Li, Xionglu Li and Hung Tien Ly as well as this offender. Further observations revealed that Guanglong Nong was also involved.

2 Observations by police enabled them to see Cai Xiong Li placing items into a rubbish bin. That rubbish bin was taken back to the police station. It was found to contain 2.8 kilograms of cannabis leaf and a pair of white latex gloves. No one has been charged concerning that quantity of cannabis leaf.

3 The cultivation continued after that date. It appears that it was intended that the plants would be harvested on 25 February 2009. To that end Cai Xiong Li made a number of telephone calls to organise a meeting on 24 February 2009. The following day Cai Xiong Li, this offender, Hung Tien Ly and Xionglu Li all attended at the Wolseley Street premises for the purposes of harvesting the cannabis plants. It is to be noted - and the importance of this will become apparent later - that Guanglong Nong did not attend to assist in the harvesting.

4 The police then entered the premises and arrested the offenders. They saw that the enhanced indoor cultivation of cannabis plants had been well established. As is usually the case, the mains electricity had been bypassed and there were many items involved in cultivation found, such as lampshades, fans, power transformers, in three areas of the house and in an under floor room. Two hundred and twenty-seven cannabis plants were taken from the house. Ninety of those were in two propagating trays and were immature seedlings. The remaining 137 plants were being harvested and they yielded twenty-eight kilograms of wet cannabis leaf (this is the matter on the Form 1).

5 It is clear from the facts tendered before me and confirmed by the Crown that there was a hierarchy of offending. At the top of the tree was Cai Xiong Li. It was he who rented the premises and organised the others to work for him. At the bottom of the tree was Guanglong Nong and in the middle, Mr Crown concedes slightly above Guanglong Nong, was this offender. Mr Crown asked that I sentence him on the basis that he was a labourer. Not surprisingly, Mr Gillette who appears for the offender does not quarrel with that description of his client’s conduct.

6 Somewhat remarkably, the offender is fifty-four years of age and has no prior criminal history. He was born in Vietnam and came to Australia in 1985 as a refugee. Once in Australia he married and had two children; they are now aged nineteen and twenty-three. Although the marriage has not been without its difficulties, it is the intention of the offender to resume living with his wife upon his release from custody. Mr Ly studied in school to the equivalent of year 10 whilst in Vietnam, but once arriving in Australia it does not seem that he undertook any further education, and both his work and further education have been limited by his limited ability to read, write or speak English. Notwithstanding this, according to the pre-sentence report, he has had a stable history of employment. He worked as a welder for about ten years and then as a car detailer. He was employed until he was charged for the current offences. There is no suggestion that the offender was himself a user of drugs, and it seems that the offender has become involved in this offence as a labourer because of the financial rewards that it would bring him.

7 The offence carries with it a standard non-parole period of ten years. The Crown says that there would be reasons for departing from the standard non-parole period, they being that there was a plea of guilty, that the quantity of plants involved was only slightly over the number which would take it into the large commercial quantity, and the offender’s age and prior good character would suggest he has good prospects of rehabilitation. I will accept what the Crown says and depart in a significant way from the standard non-parole period. Nevertheless, it remains as an important guidepost indicating the seriousness with which offences of this kind should have been dealt.

8 I earlier sentenced Mr Nong. At the time I commented that from the information available to me regarding other sentences imposed upon those convicted of cultivating a large commercial quantity of cannabis by enhanced indoor means do not appear to have reflected the seriousness with which the legislature says such offences should be treated. The sentencing statistics and cases which I was provided with today have only confirmed that view. Nevertheless, it is not for me to make an example of this offender in order to correct what I believe is an inappropriate leniency being offered to people who have committed this offence. Given the standard non-parole period of ten years, it is remarkable that the sentencing statistics would suggest that the longest head sentence imposed for an offence of this kind is only seventy per cent of the standard non-parole period.

9 I should also mention principles of parity and a particular difficulty that arises in sentencing the offender. As well as Mr Nong, one of the other men involved in this operation has been sentenced. Cai Xiong Li, who both Mr Crown and Mr Gillette regard as the principal, (as do I), was sentenced by his Honour Judge Norrish on 24 September 2010. He was sentenced for not only the offence of cultivating a large commercial quantity of cannabis plants by indoor means, but also an offence of supply. The effective non-parole period imposed by his Honour was three years. When I sentenced Mr Nong, I specifically said that one of the most important reasons that I was imposing the sentence on Mr Nong that I did was because, if I did not, he would have a justifiable sense of grievance when he compared his sentence with that imposed on Mr Ly by Judge Norrish.

10 At the time I sentenced Mr Nong, a decision had not been made by the prosecution as to whether there would be a Crown appeal against the sentence imposed by Judge Norrish, but Mr Laird today told me that there was to be such an appeal. I will say quite clearly that I am only imposing a sentence upon this offender which is as lenient as it is because of the principles of parity. If, as it turns out, the sentence imposed by Judge Norrish is found to be wrong by the Court of Criminal Appeal, then one of the most significant factors affecting the sentence that I am going to impose on this offender will disappear. It is unfortunately that if there is an error in the case of the sentence involving Mr Li, it has flowed through to the sentences I have imposed on Mr Nong and this offender.

11 Despite everything I have said I want to emphasise that it is a very important matter that the principles of parity are applied. As I mentioned when sentencing Mr Nong, no-one should think that the length of a sentence to be imposed is significantly affected by the identity of the judicial officer imposing it. I accept that the offender has a very large bank of good character on which he is entitled to rely. As I said before, it is remarkable that his first offence would be one of such seriousness, committed after a lifetime of law-abiding behaviour.

12 I accept that the offender is remorseful for what he has done, and with the support of his family, does have good prospects of rehabilitation.

13 Notwithstanding that, it has to be recognised that the offender’s misconduct was serious, and that he needs to be significantly punished for what he has done.

14 I will discount the sentence I would otherwise have imposed upon him by twenty-five per cent to reflect his early guilty plea, and particularly the utilitarian benefit that that gives to the criminal justice system.

15 The sentence I impose upon the offender is this, taking into account the Form 1 matter: the offender is sentenced to imprisonment. I set a non-parole period of two years and two months to have commenced on 25 February 2009. It will expire on 24 April 2011 which is the earliest day on which the offender can be released to parole. I set an overall sentence of four years and four months. As will be obvious, I have found special circumstances in this case: it is the offender’s first time in custody.

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